Pound, Roscoe 1870-1964

POUND, ROSCOE 1870-1964

Law professor

Youthful Brilliance

Roseoe Pound, who would become one of the twentieth century's most influential legal thinkers, was something of a child prodigy. He was already reading when he was three, and his mother taught him German when he was six. His first real passion was botany, and when he turned fourteen he entered the University of Nebraska in his hometown of Lincoln. After graduating with a degree in botany he studied law with his father, a local lawyer, and then spent a year at Harvard Law School. Convinced the law was not for him, he was willing and able to both practice and teach law while he pursued a doctorate in botany. He returned to Lincoln where he wrote his dissertation, "Phytogeography of Nebraska" (1898), while practicing law, serving as an assistant professor in the College of Law and teaching Roman law in the Latin department. In 1903 he became dean of the College of Law. Two years later he abandoned academia temporarily, and botany permanently, to become a practicing lawyer.

Pound and Sociological Jurisprudence

Trained in both science and the law, Pound approached the two disciplines as similar. Law schools and academic training for lawyers were replacing the traditional routes to the profession, and academic lawyers saw themselves as social scientists. At the 1906 meeting of the American Bar Association Pound gave an influential address, "The Causes of Popular Dissatisfaction with the Administration of Justice." He attacked contemporary trial procedures—which emphasized lawyers as adversaries contesting over the truth—for creating a "sporting theory of justice," and he argued that many disputes would be better settled by administrative boards than by courts. Judges were not trained to be sociologists, were not in touch with new economic or social conditions, yet continued to treat complicated economic relationships, such as the relationship between a railroad and its employees, as though both parties "were farmers haggling over the sale of a horse." Judges and courts needed to recognize changes in society and needed to understand sociology and economics as well as the law.

Pound and Mechanical Jurisprudence

Pound attacked what he called "Mechanical Jurisprudence," brought on because judges, trained in the common law, were unwilling to uphold statutes that went beyond what the common law envisioned. Liberty, the judges insisted, included the liberty to make contracts, and any legislative attempt to restrict this liberty (such as a sixty-hour week for bakery workers or requiring workers to join unions) violated a common law doctrine. Courts were also restricted by the sharp line between law and fact: juries could determine facts, but it was up to the judge to apply the law. The line between law and fact, Pound argued, was increasingly artificial, as common law notions that once had clear meanings, such as combinations in restraint of trade, were becoming more complicated and confusing.

Pound and Administrative

Law. Pound, like other progressive reformers, proposed administrative boards and other nonjudicial ways of regulating economic affairs. When the state attempted to regulate working hours or other conditions and the court struck down the regulations because they violated "liberty of contract," the end result would not be as damaging for labor or business as it would be for the courts. The legislatures would "learn how to comply with the letter of the decisions and to evade the spirit of them," and the "evil of those cases will live after them in impaired authority of the courts long after the decisions themselves are forgotten."

Pound and Changes in the

Law. The substantive doctrines of the common law, Pound emphasized, had changed by the twentieth century. Judges, trained in Blackstone, were not qualified to pass judgment on technological problems. In two law review articles, "Mechanical Jurisprudence" and "Liberty of Contract," Pound made the intellectual case for the kind of fact-based law Louis Brandeis had helped to shape in the Müller case. In the absence of the kind of sweeping changes Pound and other reformers proposed, an attention to fact and to social conditions could help judges more effectively mete out justice.

Pound's Later Career

Pound as a legal philosopher outshone Pound the lawyer; and Pound the law professor outshone both. After a few years in legal practice he became a professor of law at Northwestern University, then at the University of Chicago, and in 1910 at Harvard, where he would spend the rest of his career as both a teacher (in 1910 he became the Joseph Story Professor of Law) and as dean of the law school (1916-1936). He became more conservative in his later years, and he wrote his most influential essays before he was forty. But his work in the first decade of the century so changed the legal profession, and so influenced the study and practice of the law, it is inconceivable anything else could have matched their importance. He advised the Nationalist Chinese regime of Chiang Kai-shek and became Harvard's first University Professor in 1937. By the time Pound arrived at Harvard, the leaders of the profession were coming to accept his ideas, and young lawyers and philosophers of the law were prepared to take his ideas far beyond his own application of them. He died on 1 July 1964 at the age of ninety-four.

source:

Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Cambridge, Mass.: Harvard University Press, 1992).